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High Court Of Rajasthan
Judgename : B.P.Beri
KHAZANSINGH - Appellant
Versus
STATE OF RAJASTHAN - Respondent
Criminal Revn. 480 Of 1966
Decided On : 12/20/1966
CRIMINAL LAW - TRIAL BY COURT MARTIAL - APPLICABILITY OF SECTION 549 OF THE CODE OF CRIMINAL PROCEDURE - INTERPRETATION OF THE WORDS "CHARGED WITH AND TRIED" - MEANING OF "TRIAL" - DISTINCTION BETWEEN CASES WHERE PERSONS GOVERNED BY THE ARMY ACT ARE ACCUSED ALONG WITH OTHERS AND CASES WHERE THEY ALONE ARE BEING PROSECUTED - STAGE AT WHICH TRIAL COMMENCES - APPLICABILITY OF SECTION 5 (1) (A) OF THE CRIMINAL LAW AMENDMENT (AMENDING) ACT, 1966.
Fact of the Case:
Four commissioned officers of the Indian Army, who were accused along with three civilians of offences under the Indian Penal Code and the Prevention of Corruption Act, moved a joint application before the Special Judge praying that in view of the Criminal Law Amendment (Amending) Act, 1966, they being commissioned officers of the Indian army were entitled to be dealt within accordance with the provisions of Section 549 of the Code of Criminal Procedure. The Special Judge rejected their application.
Finding of the Court:
The court held that the case of the applicants was not covered by the provisions contained in Section 5 (1) (a) of the amending Act since the trial had not commenced before the crucial date of 30th June, 1966. The court interpreted the word "tried" in the context of the historical background of the Amending Act and in view of the purpose it aimed to attain, and held that it means that the Special Judge has applied his mind to the documents submitted by the prosecution. Until therefore the stage envisaged by Sub-section (2) of Section 251-A is reached, the case does not fall under Section 5 (1) (a) of the Amending Act.
Issues: Whether the case of the applicants was covered by the provisions contained in Section 5 (1) (a) of the Criminal Law Amendment (Amending) Act, 1966.
Ratio Decidendi: The court held that the trial had not commenced before the crucial date of 30th June, 1966, and therefore the applicants were not "charged with and tried" within the meaning of Section 5 (1) (a) of the Amending Act. The court relied on the language of Section 251-A of the Code of Criminal Procedure, which lays down the procedure to be followed by Magistrates in the trial of warrant cases, and held that the trial commences only when the Magistrate has satisfied himself that the documents referred to in Section 173 have been furnished to the accused and has given the prosecution and the accused an opportunity of being heard.
Final Decision: The court allowed the revision application and set aside the order of the Special Judge. The Special Judge was directed to proceed in accordance with the provisions of Rules 3 and 4 of the Rules framed under Section 549 of the Code of Criminal Procedure.
B. P. BERI, J.
( 1 ) THE Special Judge No. 2, Jaipur rejected the claim of the four applicants before me, who are commissioned officers of the Indian Army to be dealt with in accordance with the provisions of Section 549 of the Code of Criminal Procedure, which prescribes trial by Court Martial by his order dated 10th October, 1966, and it is against this order that they have come up in revision.
( 2 ) THE facts which are necessary to be noticed for the disposal of this revision application briefly stated are : a charge sheet was submitted before the Special Judge on 27th January, 1966 against 8 persons accusing them of offences of criminal conspiracy, bribery, criminal breach of trust, cheating and falsification of accounts under the Indian penal Code and under Section 5 (2) read with Sections 5 (1) (a) and 5 (1) (d) of the prevention of Corruption Act, 1947. One of them K. S. Oberei turned an approver. Out of the remaining 7 accused three are civilians and four are officers of the indian Army who are applicants before me. On 5th March, 1966 the case was adjourned to 4th July, 1966 at the request of the Public Prosecutor enabling him to supply the copies of documents envisaged by Section 173 of the Code of Criminal procedure and for enforcing the attendance of the two accused persons, who were not served till then. No progress of the case was made until 13/14-9-1966 when the four applicants. Army Officers, moved a joint application praying that in view of the Criminal Law amendment (Amending) Act, 1966 they being commissioned officers of the Indian army were entitled to be dealt within accordance with the provisions of Section 549 of the Code of Criminal Procedure. The Special Judge rejected their application, and, therefore the present revision application.
( 3 ) MR. Agarwal appearing for the applicants urged that the order of the learned special Judge is erroneous because he failed to give effect to Section 5 (1) (a) of the Criminal Law Amendment (Amending) Act, 1966. Mr. Mehta for opposite party supported the order of the Special Judge.
( 4 ) IN order to appreciate the rival contentions of the learned counsel ft is proper to briefly notice the relevant law and the changes made therein.
( 5 ) THE Criminal Law Amendment Act (Act No. XLVI of 1952) amended the Indian penal Code and the Code of Criminal Procedure to provide for more speedy trial of certain offences. The Act empowers the State Government to appoint Special judges who alone could try offences of bribery and ofences under the Prevention of Corruption Act and of criminal conspiracy and any attempt or abetment concerning the said offences. Under Section 8 of the Act it is provided that the procedure prescribed for the trial of warrant cases was to be followed by them. In a Bombay case a question was raised whether a Special Judge appointed under the Criminal Law Amendment Act was required to follow the procedure prescribed by Section 549 of the Code of Criminal Procedure and the rules made thereunder. The Bombay High Court in E. G. Barsay v. State, AIR 1958 Bom 354, held that the provisions of Section 549 of the Code of Criminal Procedure did not apply to special Judges appointed under the Criminal Law Amendment Act, because they were not Magistrates. The matter went up to the Supreme Court and in E. G. Barsay v. State of Bombay, air 1961 SC 1762, their Lordships upheld the decision of the Bombay High Court, In the light of the judgment of the Supreme Court in the said case it became necessary to amend the Criminal Law Amendment Act and "to insert a new section therein, as from the commencement of the Act, to save the jurisdiction exercisable by a Court martial or other authority under the Army. Navy and Air Force Acts (cf. the statement of Objects and Reasons, Gazette of India, Extraordinary, Section 2, dated December 3, 1965 introducing the bill to amend the Criminal Law amendment Act, 1952 ). An Ordinance was issued on 30th June, 1966 called the crim
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